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Thread: video games -- public performance?
video games -- public performance?
user name
 2006-12-11 23:25:45 

  


  

    The case you are looking for is Allen v. Academic Games League of America, Inc., 89 F.3d 614 (9th Cir. 1996).  I've not Shepardized it, but the case held for the defendant in a copyright infringement case based on claim of public performance at a tournament. Surprisingly, the court seems to suggest that because of the nature of games, it's hard to infringe the right of public performance, but in any event, fair use would prevail under those facts.  In relevant part:
_______________
In applying these statutory definitions to the playing of Allen's games in a tournament setting, we
conclude that the playing of a game is not a "performance" within the meaning [**6] of the
Copyright Act.

Allen maintains that the language of Section 106(4) precludes AGLOA from conducting their national
tournament because it constitutes a public performance of his protected literary works, the subject
copyrighted games. Allen contends that a purchaser of a board game only obtains the right to play
the board game in settings that are not "public" because playing or performing the games publicly is
a right held exclusively by the copyright holder under § 106(4). However, HN3 the interpretation of
"play," as used to define "perform" in § 101 of the Copyright Act, has generally been limited to
instances of playing music or records. See Polygram Intern. Pub., Inc. v. Nevada/TIG, Inc., 855 F.
Supp. 1314, 1321 (D. Mass. 1994); Hickory Grove Music v. Andrew Andrews, 749 F. Supp. 1031,
1036 (D. Mont. 1990), but cf. Red Baron-Franklin Park, Inc. v. Taito Corp., 883 F.2d 275, 278-79
(4th Cir. 1989), cert. denied, 493 U.S. 1058, 107 L. Ed. 2d 952, 110 S. Ct. 869 (1990), (holding that
a video arcade owner's use of copyrighted circuit boards in coin-operated video machines available to
the public for a fee constituted public performance of the copyrighted work under § 106(4)). The
term "play" has [**7] not been extended to the playing of games. To do so would mean
interpreting the Copyright Act in a manner that would allow the owner of a copyright in a game to
control when and where purchasers of games may play the games and this court will not place such
an undue restraint on consumers.

Whether privately in one's home or publicly in a park, it is understood that games are meant to be
"played." In this situation, the games are being played by students who come together for the
purpose of friendly, [*617] academic competition. There is no indication that this nonprofit
corporation, AGLOA, and the individual respondents are making the subject games available to the
public for a fee. The students, schools, and school districts use their own games, purchased from
Allen, in the tournaments, and respondents are merely organizers of this event. Moreover, AGLOA's
tournaments are limited to students who participated in regional competitions which also involved
the playing of Allen's games.

Even if the playing of games could constitute a performance, we would have to recognize the
applicability of the fair use doctrine under Section 107 of the Copyright Act. HN4 This section allows
the fair use of [**8] a copyrighted work in such instances as for nonprofit educational purposes
and where the effect of the use upon the potential market for or value of the protected work is
limited. As indicated above, AGLOA tournaments are held not for profit, but for encouraging
education among young students. The potential market for the subject games has in all likelihood
increased because participants of the AGLOA tournament have had to purchase Allen's games.
Analysis of other factors involved in § 107 leads this court to conclude that the application of the fair
use doctrine in this case is clearly appropriate.
____________

Good luck.

John
___________
 
John T. Mitchell


 

On Dec 11, 2006, at 5:35 PM, Judy J. Dehle wrote:

I would also love to hear any advice on this issue. I haven’t seen anywhere you can purchase PPR for games or gaming parties. I work at a college and students wish to have DDR parties and other gaming events. In the past, I have read the backs of game boxes, emailed game companies, read over their websites and surfed the internet looking for advice without any results, yeah or nay. I have also looked to Kenneth Crews books for advice. I have told the students no without PPR which would technically also mean that they really shouldn’t be gaming in their dorm lounges either. The students point out that hotels have gaming parties all of the time, some hosted by gaming companies such as EA and some not, but all largely advertised although most don’t charge in hopes that you will rent a room for the night. Apparently they don’t get that gamers are sleep deprived. Some charge a catering fee.
 
Judy Dehle
Manager, ITMS
"A truly great book should be read in youth, again in maturity and once more in old age, as a fine building should be seen by morning light, at noon and by moonlight." --Robertson Davies
From: CNI-COPYRIGHT -- Copyright & Intellectual Property [ CNI-COPYRIGHTcni.org">mailto:CNI-COPYRIGHTcni.org] On Behalf Of Laura Jewell
Sent: Thursday, December 07, 2006 9:50 AM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property
Subject: [CNI-(C)] video games -- public performance?
 
Hello all,
I am a youth services librarian at a public library. We’re interested in hosting video game tournaments in the library, but are concerned about public performance restrictions. On one hand, it seems that the games are intended to be played in groups, on the other… well, we want to be safe. Can you give any guidance?
 
Thanks in advance.
Laura



  

  
  
   
     
    

  

    video games -- public performance?
  


  

     user name

     2006-12-13 00:05:30
  


  

    
At 06:25 PM 12/11/2006, John Mitchell wrote:
>The case you are looking for is Allen v. Academic Games
League of 
>America, Inc., 89 F.3d 614 (9th Cir. 1996).

Thanks for the reference. It is always nice when common
sense 
prevails. Prior to reading this I had started writing
letters to all 
my clothing manufacturers asking for public performance
licenses for 
my apparel. I knew it was illegal to photograph me in
copyrighted 
clothes, but I hadn't considered that the mere act of
wearing them 
might be illegal. My bad.

I can report that I have redonned my apparel, proudly
wearing case 
law as a necktie. (No photos please*)

David Dailey
*what ever happened with that westlaw v mead thing after
all? Is a 
necktie woven from case law still okay?
http://srufaculty.sru.edu/david.dailey/c
opyright/dailey_on_copyright.htm 


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